Lack of transparency regarding schools converting to academies

The request was partially successful.

Dear Lincolnshire County Council,

As a resident of Lincolnshire I am deeply concerned about the activities of the Council who appear to be sanctioning the take-over of schools in parts of the County with very little publicity. This is undemocratic and against the spirit of localism which the Government claims to support.

It appears that the CfBT, a private organisation, is using its close links to the county council to push its own agenda, without any general public discussion. It is claimed that the proposal has the support of senior Councillors but there are concerns that this support has not been approved in any council meeting.

I call upon Lincolnshire County Council to make public any documentation about this proposal including minutes of meetings and letters to schools.

Yours faithfully

J Downs

Infomgt, Lincolnshire County Council

1 Attachment

Customer Insight Team
Customer Service Centre
Witham Park House
Waterside South
Lincoln
LN5 7JN
Tel: 01522 782187
[1][Lincolnshire County Council request email]

[2]www.lincolnshire.gov.uk

Dear J Downs

Freedom of Information Reference: 09516FOI

Subject: Request for information regarding schools converting to academies

Thank you for your recent request for information received by this office
on 16 March 2011. Your request is being dealt with under the terms of the
Freedom of Information Act 2000.

Your request will be handled by the Adults & Children's Services
Directorate. We will aim to respond to your request, notifying you whether
or not the information requested is held by Lincolnshire County Council
and communicating that information to you (provided that the information
is not exempt under the terms of the Act), within 20 working days from the
day after your request was received.

We may reasonably require further information from you in order to
identify and locate the information requested. If this is the case we will
contact you in due course.

In some circumstances a fee may be payable and if that is the case, we
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required to pay before we will proceed to deal with your request.

If you have any queries about this letter, please contact us. Please
remember to quote the reference number above in any future communications.

Yours sincerely,

Mark Haynes
Head of Customer Operations
Customer Service Centre

[3][Lincolnshire County Council request email]

The information we have supplied to you may contain intellectual property
rights of Lincolnshire County Council. Your use of the information must be
strictly in accordance with the Copyright Designs and Patents Act 1988 (as
amended), or other applicable legislation. In particular, you must not
re-use this information for any commercial purpose.

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Information Regulations 2005. Please email us at
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show quoted sections

PM_Admin, Lincolnshire County Council

5 Attachments

Thank you for your recent request for information. In your request you
have referred to the Council "sanctioning the take-over of schools" and
refer to the role of CfBT within this. For clarity we confirm that we hold
no recorded information relating to CfBT "taking over" schools or any
intention on the part of CfBT to use "its close links to the County
Council to push its own agenda" as set out in your request.

We believe that your request may be referring to CfBT establishing an
Academy Trust and their invitation to schools wishing to seek Academy
status to join the Trust. Lincolnshire County Council does hold some
recorded information relating to this proposal.

Please find attached information held, this consists of:

1. Departmental Management Team minutes dated 17 February 2011
2. Letter from the Director of Children's Services to all Chairs' of
Governors, Head teachers, Clerks to Governors and Elected Members dated 3
June 2010
3. Template letter from CfBT to Head teachers inviting attendance at a
meeting for schools considering academy status to considering joining the
CfBT Trust
4. Press release attached.

No committee meeting minutes are held relating to this subject.

In addition to the documents provided to you, we confirm that Lincolnshire
County Council also holds a confidential paper from CfBT that was
presented to the Senior Management Team in draft on 18 November 2010
setting out the CfBT Schools Trust for Academies, Free Schools and the
CfBT Affiliation Scheme. The final draft of this document is dated
30.11.10. This document has not been provided to schools. It sets out
CfBT's methodology for delivering the Trust. The document contains
business sensitive propositions and having consulted with the Chief
Executive of the CfBT Education Trust we are satisfied that this document
is commercially sensitive and its disclosure into the public domain would
be likely to prejudice the commercial interests of CfBT Educational Trust.
The information contained within the proposal is information that would be
useful to CfBT's competitors in setting up similar Trusts. This would
prejudice CfBT's ability to participate competitively providing Schools
Trusts services. For this reason an exemption from disclosure of this
document is claimed under section 43(2) of the Freedom of Information Act
which states that:

Information is exempt information if its disclosure under this Act would,
or would be likely to, prejudice the commercial interest of any person
(including the public authority holding it).

This exemption is subject to the public interest test. We have considered
the public interest in disclosure of this document and although we
recognise that there is a public interest in furthering the understanding
of the support offered to schools, we feel that this public interest can
be met through the provision of information set out in the letter from
CfBT to head teachers (attached) and through attendance at the meetings
held by CfBT to discuss the proposals, without the need to disclose the
methodology for the delivery of the service as set out in the 30.11.10
confidential proposal. We consider that in this case the public interest
in ensuring that companies are able to compete fairly outweighs the public
interest in disclosure.

The document was provided to Lincolnshire County Council in confidence.
Circulation of the document has been restricted to senior managers within
Children's Services. CfBT have given the Council a clear notice that they
consider the document to be confidential in nature. It contains
information that would be advantageous to their rivals. The document
originated from CfBT's national office, it is not information that belongs
to LCC as part of the School Improvement Service delivered by CfBT
locally. As such, a further exemption from disclosure of the document is
claimed under section 41 of the Freedom of Information Act which states
that:

Information is exempt information if it was obtained by the public
authority from any other person and the disclosure of the information to
the public (otherwise than under the Freedom of Information Act) by the
public authority holding it would constitute a breach of confidence
actionable by that or any other person.

This exemption is not subject to the public interest test.

You are entitled to request an internal review of the application of this
exemption. You can request an internal review by contacting
[1][Lincolnshire County Council request email]. Should you remain dissatisfied following
the outcome of the internal review you can submit a formal complaint to
the Information Commissioner's Office. Further information can be found on
their website [2]www.ico.gov.uk.

School leaders, their governing bodies and local communities will each
need to consider the resource costs of discharging the additional duties
and responsibilities as well as the other key benefits great autonomy
brings Where schools and Governing Body's consider that academy status is
in the best interests of the community, the Local Authority would wish to
work diligently and collaboratively with any sponsor - However the Local
Authority considers that a sponsor like CFBT which shares the Authority's
aspirations for young people especially in relation to the principles of
around inclusion, safeguarding and partnership working and who have
a proven track record of success if preferred

Amy Hall

Principal Legal Officer

Legal Services Lincolnshire

County Offices

Newland

Lincoln

LN1 1YS

Tel: (01522 552039)

E-mail: amy.hall[3]@lincolnshire.gov.uk

If you wish to comment on our services please see:
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References

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Dear Lincolnshire County Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Lincolnshire County Council's handling of my FOI request 'Lack of transparency regarding schools converting to academies'.

In your reply to my FoI request you confirm that you hold a confidential paper from CfBT, final draft dated 30.11.10, which is being withheld because it is "commercially sensitive and its disclosure into the public domain would be likely to prejudice the commercial interests of CfBT Education Trust." Your reason for withholding this information is because it is exempt from disclosure under section 43(2) of the Freedom of Information Act which states that:

"Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interest of any person."

I would like to remind you that Charities are governed by The Charities Act 1993. It is a fundamental requirement of any charity that it operates for public benefit and is independent of government or commercial interest.

As CfBT is a Charity it should be "independent of commercial interest". You cannot, therefore, justify withholding this information on grounds of commercial sensitivity.

I would be grateful, therefore, if you make this document public.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/la...

Yours faithfully,

J Downs

PM_Admin, Lincolnshire County Council

Dear Mr Downs

Review of FOI Request 09516FOI

I refer to the above and your request dated 11/4/11 for a review of the
original response to your FOI request. This review has been considered by
Stuart Carlton, Assistant Director, Children's Services.

You have asked for the review to reconsider the exemption under S 43(2)
FOIA that was applied to the confidential paper from CBfT, final draft
dated 30/11/10, and you ask the Council to 'make this document public'.
You advance the argument that 'As CfBT is a charity it should be
independent of commercial interest' and that the document cannot be
therefore withheld on the grounds of 'commercial sensitivity'.

I have reviewed the whole of your original request, considered the
additional issues you raise in relation to the charitable status of CfBT
and reviewed the application of exemptions to this report.

I note you have already had the following information disclosed to you
pursuant to your original request:

1. Departmental Management Team minutes dated 17 February 2011.
2. Letter from the Director of Children's Services to all Chairs' of
Governors, Head teachers, Clerks to Governors and Elected Members dated 3
June 2010.
3. Template letter from CfBT to Head teachers inviting attendance at a
meeting for schools considering academy status to considering joining the
CfBT Trust.
4. Press release.

The original reasoning to refuse to release the confidential paper from
CBfT, final draft dated 30/11/10 is set out as follows:

"In addition to the documents provided to you, we confirm that
Lincolnshire County Council also holds a confidential paper from CfBT that
was presented to the Senior Management Team in draft on 18 November 2010
setting out the CfBT Schools Trust for Academies, Free Schools and the
CfBT Affiliation Scheme. The final draft of this document is dated
30.11.10. This document has not been provided to schools. It sets out
CfBT's methodology for delivering the Trust. The document contains
business sensitive propositions and having consulted with the Chief
Executive of the CfBT Education Trust we are satisfied that this document
is commercially sensitive and its disclosure into the public domain would
be likely to prejudice the commercial interests of CfBT Educational Trust.
The information contained within the proposal is information that would be
useful to CfBT's competitors in setting up similar Trusts. This would
prejudice CfBT's ability to participate competitively providing Schools
Trusts services. For this reason an exemption from disclosure of this
document is claimed under section 43(2) of the Freedom of Information Act
which states that:

Information is exempt information if its disclosure under this Act would,
or would be likely to, prejudice the commercial interest of any person
(including the public authority holding it).

This exemption is subject to the public interest test. We have considered
the public interest in disclosure of this document and although we
recognise that there is a public interest in furthering the understanding
of the support offered to schools, we feel that this public interest can
be met through the provision of information set out in the letter from
CfBT to head teachers (attached) and through attendance at the meetings
held by CfBT to discuss the proposals, without the need to disclose the
methodology for the delivery of the service as set out in the 30.11.10
confidential proposal. We consider that in this case the public interest
in ensuring that companies are able to compete fairly outweighs the public
interest in disclosure".

In the request for this review you have advanced the argument that the
Council cannot apply this exemption as CfBT is a charity and should be
independent of commercial interests. CfBT is a not -for- profit
organisation and is a registered charity. To have achieved charitable
status CfBT have demonstrated that their organisation's aims are
charitable and for the public benefit i.e in improving education.
Not-for-profit organisations are able to earn a profit, however such
earnings must be retained by the organisation for its self preservation,
expansion and future plans. Therefore CfBT can have commercial
interests that do fall to be considered in this situation as they need to
ensure they remain a viable organisation so that can continue to
pursue their charitable aims. I note the ICO Awareness Guidance No 5
which states: " A commercial interest relates to a person's ability to
participate competitively in a commercial activity i.e. the purchase and
sale of goods & services. The underlying motive for these transactions is
likely to be profit, but this is not necessarily the case, for instance
where a charge for goods or the provision of a service is made simply to
cover costs". In this case I am satisfied that the disclosure of
information amounting to the methodology for delivering a service is
commercially sensitive information even though the motive for the sale of
the service in question is simply to cover costs and continue the
charitable aim. Given the provision for services in this area is in such a
formulative stage I conclude the prejudice is more likely to occur at this
time.

I have reviewed the reasoning in applying the exemption and the
application of the public interest test. I note the material that has
already been released to you. I also note in this balancing exercise that
the provision of services to public authorities, in this case CfBT, often
provide cost effective solutions for the public sector. I conclude, on
balance, that the public interest favours the application of the exemption
and I confirm that I concur with the application of S43(2) exemption in
relation to the report.

In addition, whilst not specifically raised by you as matter you wished to
have reviewed, I have also taken the opportunity to consider the other
exemption applied to this report under section 41 of the Freedom of
Information Act as it overlaps with the exemption applied under S43(2)
above. The original reasoning in applying an exemption under S 41 is set
out as follows:

"The document was provided to Lincolnshire County Council in confidence.
Circulation of the document has been restricted to senior managers within
Children's Services. CfBT have given the Council a clear notice that they
consider the document to be confidential in nature. It contains
information that would be advantageous to their rivals. The document
originated from CfBT's national office, it is not information that belongs
to LCC as part of the School Improvement Service delivered by CfBT
locally. As such, a further exemption from disclosure of the document is
claimed under section 41 of the Freedom of Information Act which states
that:

Information is exempt information if it was obtained by the public
authority from any other person and the disclosure of the information to
the public (otherwise than under the Freedom of Information Act) by the
public authority holding it would constitute a breach of confidence
actionable by that or any other person.

This exemption is not subject to the public interest test".

I have reviewed the original reasoning in applying this exemption and I
consider that this material attracts the necessary quality of confidence
and I therefore concur that the application of a S41 exemption in relation
to the report is appropriate. Although the S 41 exemption is an absolute
exemption I have considered whether a public interest argument could be
advanced so as to provide a defence against a claim for breach of
confidence. For the reasons set out in respect of the public interest
arguments for the S43(2) exemption above, I am satisfied that the public
interest is not in favour of disclosure.

I appreciate you may be disappointed with my decision to maintain the
application of exemptions and not to release the report to you but I hope
you will be reassured that there has been a full review of this matter.
However, should you remain dissatisfied following the outcome of the
review you can submit a formal complaint to the Information Commissioner's
Office. Further details can be found on their website at
[1]www.ico.gov.uk.

Yours sincerely

Lincolnshire County Council

Children's Services

References

Visible links
1. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Rob Shorrock left an annotation ()

The issue here is why did CfBt provide, and why was it accepted that they could provide a confidential paper that appears to set out a plan for a trust that CfBT would lead. It is all very well for LCC to say that it is confidential - the real question is what advantage has CfBT gained through doing this outside the procurement process and to what extent as the current LCC schools improvement service has this given them unfair advantage over competitors. More importantly, to what extent are CfBt acting politically, well beyond the remit of their current contract, and influencing the policy of the council?

All of this remain very unclear and raises questions of confidence about the efficacy of the process that LCC has adopted.